Tom Hickman: The High Court Rides to the Aid of Richard III

Whilst cases often raise issues of constitutional importance, seldom has the subject matter of a legal claim related to matters of such constitutional moment as that concerning the discovery of the mortal remains of Richard III.

Richard III died in Bosworth Field in 1485, fighting for his life and his Kingdom. He was the last English King to die on the battlefield. His death marked the end of the Wars of the Roses and drew the Plantagenet era to a close. It was succeeded by the House of Tudor, which ruled England for 118 years. Richard III’s death is often taken to mark the end of the Middle Ages themselves. It was on any view a turning point in English history.

Richard had become King of England in highly controversial circumstances. His brother, Edward IV, had secured the throne with Richard’s support in April 1471, at the battle of Barnet. Upon Edward’s death in 1483 Richard was appointed Lord Protector: Edward’s eldest son, Edward V, was aged twelve and his younger brother nine. The two boys, however, were taken to the Tower of London and, after a time, were never seen again. The children were declared to be illegitimate and Richard assumed the throne.

Historians have divided over whether Richard was the deformed arch villain portrayed by Shakespeare, or an upright and generous King who was the victim of Tudor propaganda. It has meant that Richard III is one of the most controversial figures in English history.

His death and burial themselves have not escaped controversy. One view of the matter was that his body was taken to Leicester (because it was nearby the battlefield) where Henry Tudor put his body on display and had it buried without any of the pomp or circumstance normally afforded to Kings, albeit in consecrated ground at the church of Grey Friars. However, the site of the Church was lost along with any remains that might have been there.

It was thus utterly extraordinary when, last year, the site of the church together with the remains of Richard III were found under a car park in Leicester.

As Mr Justice Haddon-Cave stated in a judgment given on 15 August 2013: “The archeological discovery of the mortal remains of a former King of England after 500 years is without precedent.” It was all the more important given the historical significance of Richard III’s death and the uncertainty surrounding it.

The skeleton found was a man in his early thirties who suffered from scoliosis: not a hunchback and no withered arm, but a condition that would have reduced Richard III’s height, twisted his spine and led to one shoulder being higher than the other. He had, indeed, been killed by fatal blows to the head in battle and had been roughly placed, without a coffin, under the Choir: see David Baldwin, Richard III (Amberley 2013) pp. 230-232.

On 4th February 2013 following DNA tests and other investigations, the University of Leicester announced that the remains were beyond reasonable doubt those of Richard III. The discovery had been due to remarkable collaborative detective work by the University and private individuals with an amateur interest in the reign of Richard III.

Leicester University had applied for and been granted an exhumation licence from the Secretary of State for Justice relating to any remains found at the site. At that stage the prospect of actually finding the body of Richard III was regarded by the University as remote: the license application itself described the prospect as an “unlikely event”. It proposed that if such remains were found they should be reinterred at Leicester Cathedral. Precisely why this location was chosen is not known (it is close to the site of Grey Friars). The Secretary of State for Justice granted the licence on these terms and refused to reconsider it once the remarkable archeological discovery was confirmed.

In May 2013, and following pre-action correspondence, judicial review proceedings were issued against the University of Leicester and the Secretary of State for Justice challenging the decision to reinter the body at Leicester Cathedral. The claim was formally brought by the Plantagenet Alliance Limited, a campaign organisation incorporated to represent the views of persons who share two objectives. The first is to secure full consideration of decision as to where the remains should be reinterred. The second is to persuade the Government that the body should be placed in York Minister – York befitting a Plantagenet King. The claim was funded by public donations. The claim itself only relates to the first of these goals: the need for a public consultation before any final decision is made as to where Richard III should finally be laid to rest.

The Secretary of State and the University of Leicester sought to have the claim dismissed at the permission stage. They claimed that there was no duty to consult anyone at all before making a decision as to where Richard III should be reinterred. Absent any statutory duty to consult and absent any legitimate expectation that a consultation exercise would be carried out, they argued, it was “wholly unarguable” that there was any requirement to consult.

There is case law that supports the view that a duty to consult requires a statutory or legitimate expectation hook (e.g. In Re Westminister City Council [1986] AC 668, 692-693). But the two overriding duties that must be complied with are the duty of fairness and the duty to take into account all relevant considerations and a requirement to consult can arise from either. It is very difficult to see how these requirements, particularly the latter, could be complied with in the context of this decision on the basis of the views of the Ministry of Justice and Leicester University alone. And as we know, in public law especially, context is everything.

The decision gives rise to complex and competing issues of religious, historical, constitutional, academic and even commercial nature. There are a number of people and organisations that have a legitimate interest in making represetations. One need only think for a moment of relevant questions that fall to be answered: What are the constitutional conventions relating to the burial of English Monarchs? Were Richard III’s wishes known and what significance should be accorded to them? What would be the most fitting historical location for the remains – York Minister, Westminster Abbey, Barnard Castle, Fotheringhay and other locations have all been suggested? What are the views of the Catholic and Anglican Churches (Richard III was, of course, a Catholic)? What descendants does he have and what are their views? What weight should be afforded to the fact that Leicester University was instrumental in finding the remains? And what are the views of those others who assisted in their recovery? What are the educational and tourism benefits to Leicester compared with other locations and what weight should these be afforded?

The list could be lengthened without difficulty. Put shortly, the decision as to where to reinter the remains of Richard III following their extraordinary discovery last year raises issues of such significance and of such diverse nature that a consultation is necessary if an informed and sound decision is to be made. As the Claimant put it, the approach that had been taken was essentially that of “finders keepers”.

Haddon-Cave J was even more forthright. In an unusual fully reasoned judgmentgranting permission, he carefully and in my view convincingly exposed the infirmity of the Defendants’ position. The case, he said, “involves the remarkable, and unprecedented, discovery of a King of England of considerable historical significance, who died fighting a battle which brought to an end a civil war which divided this country.” It is “obvious” he said, that there is a duty to “consult widely” arising “from this singular fact alone.” As he eloquently put it, the discovery, “touches upon our history, heritage and dignity.” (at [34])

In other words, the Judge held that the decision as to what to do with the exhumed remains of Richard III is of such national significance that, legally and constitutionally, there must be a full opportunity for the views of interested persons and bodies to be made known and then taken into account.

If a legitimate expectation hook had to be found on which to hang a duty to consult, one is in any event available, as the Judge also held. Applicable guidance issued by a panel of experts, including Home Office Representatives, expressly refers to the need for decisions about the treatment of human remains being made “via appropriate consultation” in order to ascertain the views of all of those persons with legitimate interests in the question.

The Defendants also resisted the claim on grounds of standing and delay. In the light of the importance of the claim Haddon-Cave J easily rejected the arguments. Those who supported the claim had a genuine interest in the decision about where to reinter Richard III and had acted with reasonable promptness after the DNA results were announced in February 2013 (There also does not appear to have been any prejudice identified by the Defendants.) The fact that a company was incorporated to facilitate the claim was neither here nor there.

Just as significant, however, were two orders that the Judge made. First, he made an order requiring the University and the Secretary of State to disclose all documents relating to their decision to reinter Richard III, and who had been included in the process of decision-making and what their views were. The Defendants had argued that they had no duty of disclosure on the surprising ground that the claim was “weak” and had not been granted permission. But it was not contended that the claim was vexatious and it is incumbent on Defendants to provide full and accurate information, and if necessary and proportionate also documentation, showing how a decision was reached and what was taken into account, even before the permission stage. This is central to the practical effectiveness of judicial review. Public authorities and those exercising public functions are not permitted to keep their cards close to their chests, as the Defendants in this case apparently sought to do.

One matter that will become clear from the disclosure will be whether any, limited, consultation took place. If a limited consultation did take place then the Claimant will have an additional ground of challenge: that having conducted a consultation the consultation failed to comply with the so-called Sedley principles for lawful consultation.

The second order made by the Judge was a protective costs order preventing recovery of costs against the Claimant in the event of the Defendants prevailing. This also reflected the general public importance of the challenge. Given the ‘costs follow the event’ approach of English law, the development of the jurisdiction to grant protective costs orders is also vital to the effectiveness of judicial review as a means of holding public authorities to the law. The Claimant had barely sufficient resources to pay the costs of issuing the proceedings. The Secretary of State had not only resisted the grant of a protective costs order but had asked the court to require the Claimant to give security for the Government’s costs, something that would no doubt have brought the litigation to an abrupt end. By necessary implication, this request was refused by the grant of a protective costs order.

The judgment of Haddon-Cave J represents—if you will excuse a metaphor from a different historical epoch—the writing on the wall for Defendants. He concluded his judgment with some final comments and a recommendation that leave one in no doubt what he made of the Defendants’ position. He noted the irony that the Wars of the Roses are reputed to have started when John Beaufort and Richard Plantagenet plucked red and white roses from the gardens in the Temple, and now, in a final unexpected Act, they have returned to the Temple in the form of an argument about the final resting place of Richard III. But he said it would be “undignified and unedifying” for the issue of such constitutional significance and sensitivity to be argued about further in the courts. The Judge “strongly” recommended that the Defendants refer the issue to an independent advisory panel made up of suitable experts and Privy Counsellors, who can consult and receive representations from all interested persons and bodies.

It is greatly to be hoped that the suggested advisory panel is established. It would ensure the issue is properly and fully considered, free of any entrenched positions and potential for vested interests. The Judge was entitled to make such a suggestion given his wide powers under the Civil Procedure Rules and given his views of the merits of the case. Indeed, it may be that it is only through such a procedure that a lawful decision can be made in this unique case.

As a permission decision, the judgment of Haddon-Cave J may be of little standing as a legal precedent, but it will be a worthy footnote to the historical record if, as may be, it is the final word in this litigation. But whatever happens, Haddon-Cave’s judgment will not be the last word on the question of what should be done with the bones of the ever-controversial King Richard III.

Tom Hickman is a Reader in Law at University College London, and a Barrister, Blackstone Chambers.